93 Decision Citation: BVA 93-01957
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-52 255 ) DATE
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THE ISSUE
Entitlement to recognition as surviving spouse of the
veteran for purposes of Department of Veterans Affairs death
benefits.
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran served on active duty from December 1941 to June
1946. In August 1991, the Regional Office, Manila,
determined that [redacted] was the lawful spouse of the veteran
at the time of his death and had been without fault in the
separation between them. She was therefore found entitled
to Department of Veterans Affairs (VA) death benefits as
surviving spouse of the veteran. It was held that the
marriage of the veteran to the appellant could not be deemed
valid since she was aware of the veteran's prior marriage to
[redacted] at the time she and the veteran underwent their
marriage ceremony. The appellant submitted a notice of
disagreement with the decision in October 1991. The
statement of the case was issued in November 1991. The
substantive appeal was received in December 1991. The case
was initially received at the Board of Veterans' Appeals
(hereinafter the Board) later in December 1991. In April
1992, the case was remanded for further action. A
supplemental statement of the case was issued in May 1992.
The case was returned to the Board in August 1992 and is now
ready for appellate review.
As indicated in the April 1992 remand, the record indicates
that [redacted] died in October 1991. Accordingly, the
appellant is the only remaining claimant in this case.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that she should be
entitled to recognition as surviving spouse of the veteran
for purposes of VA death benefits since she is the legal
widow of the veteran and resided with the veteran from the
time of their marriage in 1961 until his death in 1989, a
period of some 28 years. It is maintained that the veteran
did not marry [redacted] in January 1943 as she claimed.
Rather, the marriage contract reflects that [redacted] married
another man with the same first name as the veteran, but a
different last name as confirmed by the court in a bigamy
charge filed by [redacted] against the veteran in 1975. The
court made a clear pronouncement that the veteran had not
married [redacted]. [redacted] also testified during the
proceedings that she was not certain that the individual she
married was the veteran. Accordingly, it is maintained that
the veteran was free to marry the appellant in 1961.
It is further contended, in the alternative, that the
appellant was not aware of any prior marriage of the veteran
at the time she and the veteran were married in 1961 and she
believed that they were free to marry. Thus, it is
maintained that, at the very least, her marriage to the
veteran should be recognized as a "deemed valid" marriage
and she should be entitled to VA death benefits as surviving
spouse based on such a marriage.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims file
and for the following reasons and bases, it is the decision
of the Board that the evidence of record does not support
the appellant's claim for recognition as surviving spouse of
the veteran for purposes of VA death benefits.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the regional office.
2. The veteran and [redacted] were married in the Republic of
the Philippines in January 1943. The marriage was not
terminated by divorce or otherwise prior to the veteran's
death in November 1989.
3. The veteran and [redacted] separated in 1957 and did not
thereafter reside together. [redacted] died in October 1991.
4. The veteran and the appellant underwent a marriage
ceremony in the Republic of the Philippines in May 1961.
5. [redacted] was recognized as the veteran's lawful spouse by
the regional office and found entitled to VA death benefits
as surviving spouse of the veteran.
6. At the time of the May 1961 marriage ceremony, the
appellant was aware that the veteran had a prior, subsisting
marriage to [redacted].
CONCLUSION OF LAW
The appellant was not the lawful spouse of the veteran at
the time of his death. The May 1961 marriage of the veteran
and appellant may not be considered a "deemed valid"
marriage for VA purposes. 38 U.S.C.A. §§ 101(3), 103, 5107
(West 1991); 38 C.F.R. § 3.52 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
We note that we have found the appellant's claim to be "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); effective on and after September 1, 1989. That is,
we find that she has presented a claim which is plausible.
We are also satisfied that all relevant facts have been
properly developed.
I. Background
The record reflects that, in a declaration as to marital
status in September 1946, the veteran indicated that he had
been married once, to [redacted], and that they were residing
together. He indicated that they had two children.
In a June 1956 application for VA disability benefits, the
veteran indicated that he had been married once, to [redacted],
in 1943 in Manila. He reported that they were residing
together. He indicated that they had had four children born
between 1943 and 1953.
In a February 1957 statement, [redacted] indicated that the
veteran had left her in January of that year and had not
returned.
In an April 1970 claim for disability benefits, the veteran
reported that he was married to the appellant.
By rating action dated in December 1970, the veteran was
found to be permanently and totally disabled and basically
eligible for disability pension benefits. Payments were
awarded as a single veteran and a form for declaring
dependents was forwarded to the veteran. The form, a
declaration of marital status, and various documents were
received in January 1971. The veteran indicated that he had
once had a "marriage" to a certain woman, but it had not
been a legal marriage and, when he had married the appellant
in May 1961, he had been a widower. He reported that he did
not know the whereabouts of the other woman and did not even
recall her name. A marriage contact was submitted
reflecting the purported marriage of the veteran and
appellant in May 1961. The veteran was listed as a widower
on the marriage contract.
In March 1972, prior to payment of any additional VA
benefits for a spouse, [redacted] submitted a claim for an
apportionment of the veteran's disability benefits as his
estranged wife. A marriage contract was submitted
reflecting the marriage of [redacted] and a man with the
veteran's first name, but another last name, in Manila in
January 1943.
An April 1972 joint affidavit by [redacted] and [redacted]
reflected that they had been friends and neighbors of the
veteran and [redacted] and that the veteran and [redacted] had
been married in January 1943 at the Manila City Hall in the
Courtroom of Judge Almeda. It was indicated that the
veteran had not used his correct name, but had used another
name since he was serving with the United States forces and
was hiding his true identity from the Japanese soldiers. It
was further indicated that, after the date of their marriage
in January 1943, the veteran and [redacted] had lived together
continuously. It was indicated that the veteran's name and
the name of the other man appearing on the marriage contract
referred to one and the same person, that is, the veteran.
In a declaration of marital status form completed by the
veteran in April 1972, he certified that he and [redacted] had
been married in January 1943 in Manila and that he and the
appellant had been married in May 1961.
In a June 1972 special VA apportionment decision, an
apportionment of $25 monthly was awarded to [redacted] as the
estranged spouse of the veteran. The amount of the
apportionment was later increased in March 1978 and January
1983. In March 1983, the veteran indicated that he was
willing to provide the increased apportionment for his
estranged wife, [redacted]. In April 1989, the regional office
again increased the amount of the apportionment for
[redacted].
The veteran, in August 1989, asked that the apportionment
for [redacted] be discontinued because his marriage to her was
not valid. In support of the claim, in October 1989, the
regional office received copies of proceedings from a
Philippine court regarding a charge of bigamy brought
against the veteran in 1974. The charge was that, although
he had been united in lawful marriage with [redacted], he had
willfully, unlawfully and feloniously contracted a second
marriage with the appellant.
The court proceedings reflect that the veteran testified
that he had not been in Manila in 1943; that he did not know
[redacted]; and that he had come to know her only when she
filed a bigamy charge against him in 1963; that he had never
used any other name other than his current name; and that he
was married to the appellant and that they had been married
in 1961. The court records reflect that the prosecution's
evidence consisted only of the marriage contracts reflecting
a marriage of [redacted] in 1943 and the appellant in 1961. It
was indicated that the complainant, [redacted], did not
testify, but instead had asked to dismiss the charge since
her children were all against the filing of the complaint
against the veteran. She also indicated that her witnesses
were not available to testify in court. [redacted] had also
indicated that she was not sure whether her husband was the
same individual who allegedly contracted the second
marriage. It was indicated that the 1963 bigamy charge was
dismissed for the appellant's failure to prosecute and
present evidence.
The court concluded that the identity of the accused had not
been sufficiently established. It was noted that the two
witnesses to the claimed marriage between the veteran and
[redacted] in 1943 had not testified nor had [redacted]. It was
also indicated that to the naked eye the signature of the
veteran on his marriage contract with the appellant was not
identical with that of the husband on the marriage contract
in 1943. It was noted also that the accused had denied
vigorously that he was the individual who had married
[redacted] in 1943. The court found that the guilt of the
veteran had not been proven beyond a reasonable doubt and he
was acquitted of the charge against him.
The veteran's death certificate reflects that he died in
November 1989. The appellant was listed as his surviving
spouse on the death certificate.
A claim for VA death benefits as surviving spouse of the
veteran was submitted by [redacted] in December 1989. She
indicated that she and the veteran had each been married
once, in January 1943, and that the marriage had ended by
his death. She stated that the veteran had abandoned her
and their children in 1963 and married another woman.
A claim for VA death benefits was also submitted by the
appellant in December 1989. She indicated that she and the
veteran had each been married once, to each other, in May
1961, and that the marriage had ended with his death.
In another application for VA death benefits, in July 1990,
[redacted] indicated that she and the veteran had been married
in January 1943. She stated that the veteran later had a
mistress and that they had been separated in 1958.
A November 1990 affidavit by the appellant is to the effect
that, in May 1961, she and the veteran had been married and,
as far as she was aware, there had never been any legal
impediment to the marriage since she was single and the
veteran was a widower. She reported that, as far as she
knew, the veteran had never been married to anyone except
herself.
A VA field examination report, dated in May 1991, includes
transcripts of depositions of [redacted] and the appellant as
well as interviews with other individuals. [redacted] related
that she and the veteran had been legally married in January
1943 in Manila. She reported that, in 1957, the veteran had
left her for another woman, the appellant. She indicated
that the veteran had used an alias when they were married
since he had been hiding his real identity from the
Japanese. He had still been on active duty and had joined
the guerrilla movement. She related that she and the
veteran had four children. She indicated that the veteran's
affair with the other woman had begun in 1955 while he was
working at the Central Post Office in Manila. She stated
that she had personally gone to the appellant's home and
spoken with her and advised her that the veteran was a
married man. That had been in 1956. She stated that the
appellant had known very well that the veteran had been
married to her. She testified that, after the separation in
1957, she had never remarried or lived with any other man.
She indicated that, in 1974, she had learned that the
veteran had contracted a marriage with the appellant and she
immediately filed a bigamy charge against him. The VA field
investigator described [redacted] as honest and sincere in the
deposition.
The appellant indicated that she had been legally married to
the veteran in May 1961. She reported that they had lived
together for 28 years until the time of his death. She
testified that she had only learned about the veteran's
prior marriage when he had been charged in court by [redacted]
in 1963 for bigamy. She stated that no one had ever told
her that the veteran was married prior to her marriage to
the veteran. The VA investigator who deposed the appellant
commented that in her deposition she "seemed to indicate
although she did not admit it, that all the while she had
full knowledge about the marriage of the veteran to [redacted]."
Three adult children of the veteran and [redacted] were
interviewed by the field examiner. They indicated that the
veteran had left the family in favor of the appellant. The
oldest child, age 43, indicated that she had been with
[redacted] when they personally went to the boarding house of
the appellant and informed her of the veteran's marital
status, but the appellant refused to leave the veteran.
They indicated that [redacted] had patiently waited for years
for the return of the veteran to their household but,
instead of coming back, he informed the court that he had
not been married to [redacted] because of the other name he had
used during the war to hide from the Japanese. It was
indicated that, in 1975, [redacted] had filed a bigamy charge
against the veteran and he had been in prison for several
weeks, but he had been released since he had requested the
children to intercede on his behalf. Thus, [redacted] had
withdrawn her charges and the veteran had agreed to provide
her an apportionment of his monthly pension. The field
examination report includes a photograph reportedly
depicting the veteran and [redacted] together in 1971 when one
of their daughters was married.
II. Analysis
To be entitled to death benefits as a "surviving spouse" of
a veteran, the claimant must have been the veteran's spouse
at the time of the veteran's death and have lived
continuously with the veteran from the date of their
marriage to the date of the veteran's death, except where
there was a separation due to the misconduct of, or procured
by, the veteran without the fault of the spouse.
38 U.S.C.A. § 101(3). Death benefits may be granted where a
claimant, without knowledge of any legal impediment, entered
into a marriage with the veteran which, but for the
impediment, would have been valid, and she thereafter
cohabited with him for one year or more immediately before
his death or for any period of time if a child was born of
the purported marriage or was born to them before such
marriage. Such claimant is not eligible, however, if a
claim is filed by a legal surviving spouse of the veteran
who is found entitled to such benefits. 38 U.S.C.A. 103(a);
38 C.F.R. § 3.52.
In this particular case, as indicated previously, there is
of record a marriage contract reflecting the marriage of
[redacted] and an individual with the same first name as the
veteran, but a different last name, in January 1943 in
Manila. The appellant has maintained that the individual
[redacted] married was a man other than the veteran since they
did not have the same last name and since the veteran was
acquitted of a bigamy charge filed against him by [redacted] in
1974.
The Board notes that witnesses to the wedding submitted an
affidavit in 1972 to the effect that the veteran was in fact
the individual who had married [redacted] in 1943. The
witnesses indicated that the veteran had used a different
last name in order to conceal his identity from the Japanese
since he had joined the guerrilla movement. [redacted] also
indicated in her May 1991 deposition before the VA field
examiner that the veteran had used an alias in order to
conceal his identity from the Japanese.
The record further indicates that, in a 1946 marital status
form and a 1956 application for VA benefits, the veteran
reported that he had been married to [redacted] in January 1943
and that they resided together. The veteran also indicated
in April 1970 and April 1972 that he and [redacted] had been
married in January 1943. The veteran again, in March 1983,
agreed to an increase in the apportionment of his disability
benefits for [redacted] and described her as his estranged
spouse. Although the veteran denied that he had ever been
married to the [redacted] in connection with the bigamy charge
filed against him, his testimony was obviously submitted to
avoid a conviction and criminal penalty. Although [redacted]
had asked that the charges be dismissed, the record
indicates that she did so primarily due to a request from
her children.
In the Board's judgment, the evidence of record establishes
without any doubt that the veteran and [redacted] were in fact
lawfully married in January 1943 in Manila. There is no
evidence that their marriage was ever legally terminated by
divorce or otherwise prior to the veteran's death. Thus,
the attempted marriage of the veteran and appellant in May
1961 was not valid since the veteran had a prior, subsisting
marriage to [redacted] at that time. The record discloses that
[redacted] was found to be the lawful spouse of the veteran by
the regional office and entitled to VA death benefits as
surviving spouse of the veteran. However, her death
occurred in late 1991 before she could be awarded any
benefits.
The remaining question for consideration is whether the
attempted marriage of the veteran and appellant in May 1961
may be considered a "deemed valid" marriage for purposes of
VA death benefits. In this regard, the appellant has
maintained that, at the time she and the veteran underwent
the marriage ceremony in May 1961, she had no knowledge of
any prior marriage of the veteran and believed that they
were free to marry. However, [redacted] indicated in her May
1991 deposition that she had visited the appellant in 1956
and informed her that the veteran was a married man.
[redacted]'s statement was corroborated by an adult married
daughter of herself and the veteran who related that she had
accompanied [redacted] to the appellant's residence. [redacted]'s
testimony was considered by the VA investigator to be
honest, whereas the veracity of the appellant's testimony
that she did not know of the veteran's marriage to [redacted]
was doubted. Thus, under the circumstances, the Board does
not find credible the appellant's assertion that she was
unaware of the veteran's prior marriage to [redacted] at the
time she and the veteran underwent the marriage ceremony in
1961. A "deemed valid" marriage between the veteran and
appellant may not be established under the circumstances. A
favorable determination regarding the appellant's appeal for
entitlement to recognition as surviving spouse of the
veteran for purposes of VA death benefits is therefore not
in order.
The Board has carefully reviewed the entire record in this
case; however, the Board does not find the evidence to be so
evenly balanced that there is doubt as to any material
issue. 38 U.S.C.A. § 5107.
ORDER
Entitlement to recognition as surviving spouse of the
veteran for purposes of VA death benefits is not
established. The appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.